United States District Court, D. Minnesota
The Order of St. Benedict, Plaintiff,
St. Paul Mercury Insurance Company, et al., Defendants.
T. Stich, Esq., Stacey L. Sever, Esq. and Stich Angell
Kreidler Dodge & Unke, P.A., counsel for plaintiff.
D. Meyer, Esq. and O'Meara Leer Wagner & Kohl, PA,
counsel for defendants.
S. Doty, Judge United States District Court
matter is before the court pursuant to the court's sua
sponte order to show cause and the motion for remand by
plaintiff The Order of St. Benedict (Order). Based on a
review of the file, record, and proceedings herein, and for
the following reasons, the court denies the motion to remand
and dismisses the case.
insurance coverage dispute arises out of an underlying claim
by Doe 312 that Father Tim Gillespie, a member of the Order,
sexually abused him between 1989 and 1990. Doe 312 alleges
that the defendants in the underlying case are liable for
Gillespie's conduct under theories of nuisance,
negligence, negligent supervision, and negligent retention.
Defendant St. Paul Mercury Insurance Company (St. Paul)
insured the Order under Policy No. CK06304393 from July 1,
1990, to July 1, 1991. Compl. ¶ 9. The policy provides
commercial general liability coverage and umbrella liability
coverage. Id. ¶¶ 10-16.
February 22, 2017, the Order commenced this lawsuit against
St. Paul, The Church of St. Joseph, Doe 312, and Diocese of
St. Cloud in Stearns County, Minnesota. The Order seeks a
declaration that St. Paul has a duty to defend and indemnify
it in the underlying case. The complaint does not assert any
actual claims against The Church of St. Joseph, Doe 312, or
Diocese of St. Cloud, nor does it seek relief against those
defendants. On March 15, 2017, St. Paul removed the case to
this court asserting, in part, that The Church of St. Joseph,
Doe 312, and Diocese of St. Cloud are improperly named as
defendants and should be realigned as plaintiffs, thereby
creating diversity jurisdiction. ECF No. 1, at 3-4.
this case appeared to be substantially similar to St.
Paul Mercury Insurance Company v. The Order of St.
Benedict, No. 15-cv-2617 (DSD/KMM), in which the court
recently granted summary judgment to St. Paul, the court
ordered plaintiff to show cause why: (1) The Church of St.
Joseph, Doe 312, and Diocese of St. Cloud are properly joined
as defendants in this matter, and (2) the case should not be
dismissed based on the doctrines of res judicata or
collateral estoppel or based on the court's reasoning in
the order dismissing the prior related case. In responding to
the court's order, the Order moved to remand the case to
Stearns County for lack of diversity jurisdiction.
Motion to Remand
may be removed to federal court “only if it could have
been brought in federal court originally.” Peters
v. Union Pac. R.R. Co., 80 F.3d 257, 260 (8th Cir.
1996). The removing party, as the party invoking
jurisdiction, bears the burden of establishing by a
preponderance of evidence that federal jurisdiction existed
at the time of removal. See Pullman Co. v. Jenkins,
305 U.S. 534, 537-38 (1939); Missouri ex rel. Pemiscot
Cty. v. W. Sur. Co., 51 F.3d 170, 173 (8th Cir. 1995).
Jurisdiction under 28 U.S.C. § 1332 requires complete
diversity of citizenship and a minimum amount in controversy
in excess of $75, 000. “Complete diversity of
citizenship exists where no defendant holds citizenship in
the same state where any plaintiff holds citizenship.”
OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 346
(8th Cir. 2007).
Order argues that the court lacks jurisdiction over this case
because it is a Minnesota citizen as are defendants Diocese
of St. Cloud, The Church of St. Joseph, and Doe
St. Paul concedes that complete diversity is lacking as the
case is currently captioned but argues that the absent
defendants should be realigned as plaintiffs because their
interests match those of the Order.
determining whether to realign the parties, the Eighth
Circuit applies the “actual and substantial
conflict” test. Alliance Energy Servs., LLC v.
Kinder Morgan Cochin LLC, 80 F.Supp.3d 963, 972-73 (D.
Minn. 2015) (quoting Universal Underwriters Ins. Co. v.
Wagner, 367 F.2d 866, 870-71 (8th Cir. 1966)). Under
that test the court must decide whether there is “any
actual and substantial conflict existing between the parties
as aligned.” Id. (internal quotation marks
omitted). If such conflict exists, the court should not
realign the parties. Id. In the insurance coverage
context, this court has held that it is appropriate to
realign the injured party to the side of the insured given
their shared interest in the outcome of the coverage case.
Interlachen Props., LLC v. State Auto Ins. Co., 136
F.Supp.3d 1061, 1071 (D. Minn. 2015); see also Garcia v.
Century Surety Co., No. 14-3196, 2015 WL 1598069, at *2
(D. Colo. Apr. 7, 2015) (collecting cases and holding that
“[f]ederal courts routinely realign the parties to
place the injured third party on the same side of the caption
as the tortfeasing insured, as against the insurer”);
Home Ins. Co. of Ill. v. Adco Oil Co., 154 F.3d 739,
741 (7th Cir. 1998) (“[T]he normal alignment of parties
in a suit seeking a declaratory judgment of non-coverage is
Insurer versus Insured and Injured Party.”).
despite the Order's resistance to realignment, its own